Opinion
14317.
NOVEMBER 13, 1942. REHEARING DENIED DECEMBER 4, 14, 1942.
Injunction. Before Judge Persons. Lamar superior court. June 27, 1942.
B. H. Manry, for plaintiff in error. Harvey J. Kennedy, contra.
The evidence supported the verdict for the plaintiff in a suit for injunction against trespassing on land, interfering with possession of the plaintiff and tenants, and general relief. Exceptions to rulings on the trial presented no cause for reversal of the refusal of a new trial.
No. 14317. NOVEMBER 13, 1942. REHEARING DENIED DECEMBER 4, 14, 1942.
The First National Bank of Barnesville instituted a proceeding to enjoin B. H. Manry (a) "from going upon and . . trespassing upon" certain described land; (b) "from interfering with the possession of plaintiff and its tenant;" and (c) for general relief. In the petition it is alleged that the plaintiff is the owner of the land; that the plaintiff, through its tenant, is in lawful possession of the premises; that the defendant without cause has threatened to go upon the premises, take possession, and to kill the stock belonging to the plaintiff's tenant; that the defendant is insolvent. The defendant answered, denying the material allegations of the petition, and alleging that the plaintiff is not the true and lawful owner of the land and has never been in legal possession of the same; that the tenant is not the tenant of plaintiff; that the only interest the plaintiff has is evidenced by a deed to secure a debt; and that the purpose of plaintiff's suit is to illegally obtain possession.
On the trial there was evidence that the defendant (plaintiff in error) had executed to the plaintiff (defendant in error) a deed to secure a debt, in which he warranted title and which contained a power of sale; and that the power of sale was exercised, and the plaintiff became the purchaser. In this deed the defendant contracted that "the said party of the second part, its agent or legal representatives or assigns, shall be authorized to proceed summarily to put the purchaser or purchasers in possession, the said party of the first part `defendant' covenanting and agreeing to surrender the same without let or hindrance of any kind."
The plaintiff rented the property, after it became a purchaser, to Ed Fletcher, who had formerly been the tenant of defendant. The jury returned a verdict for the plaintiff. The defendant's motion for new trial was overruled, and he excepted.
1. The first special ground of the motion for new trial complains that the trial judge's attention was called to the fact that he was disqualified, being a stockholder in the Farmers Bank which held a conflicting lien on a portion of the land in controversy, and that the judge had disqualified himself in an injunction proceeding instituted by Miss Obie Manry et al. against the same bank that is plaintiff in the instant case; and further, that the judge, in refusing to disqualify himself, stated in the presence of the prospective jurors that the Farmers Bank, mentioned above, had charged off the indebtedness from its books and never expected to collect the debt from the defendant. It does not appear that any challenge of the jurors present was made or any other objection or motion to disqualify them was interposed.
( a) The above statement by the judge does not show cause for reversal for the reason, as contended, that it put the defendant in an unfavorable light before the jury, and was prejudicial.
( b) The fact that the judge was a stockholder in a different bank which held a lien on a portion of the land in controversy would not disqualify him to preside in the instant case, such other bank not being a party, and no question as to the validity or priority of its lien being involved. Code, § 24-102.
2. The second and third special grounds complain of the disallowance of designated amendments to defendant's answer. The disallowance of an amendment to an answer is not ground for a motion for new trial. George W. Muller Bank Fixture Co. v. Georgia Railway Electric Co., 145 Ga. 484 ( 89 S.E. 615); Norris v. Railings, 138 Ga. 711 ( 76 S.E. 60); Lee v. McCarthy, 132 Ga. 698 ( 64 S.E. 997).
3. The next ground complains that the court rebuked the defendant in the presence of the jury, for stating in his opening remarks that facts stated by the plaintiff's counsel as to who was in possession of the property were false, and that the president of the bank and its attorney were in contempt of court because of having ignored an order enjoining the sale of the property, and that both of them should be in jail. The defendant could not take his chance of a verdict, and then complain that the rebuke from the court was prejudicial and amounted to an expression of opinion that the plaintiff was in possession at the time the suit was filed. Perdue v. State, 135 Ga. 277 ( 69 S.E. 184). "The public is vitally interested in the prevention of acts which may require the court to declare a mistrial, and the judge need not wait for an objection, but of his own motion may promptly interfere to prevent or stop such occurrences. . . Where acts transpire in the presence of the jury which would authorize a mistrial, and the injured party does not move therefor, but only asks the court to rebuke the same, and for an instruction to the jury cautioning them not to be influenced thereby, there is, if the court complies with such requests, a legal though inadequate cure, and this court can not order a new trial." Patton v. State, 117 Ga. 230 ( 43 S.E. 533).
4. The fourth ground complains that the court erred in excluding from evidence a quitclaim deed offered by the defendant, by which the property in question was conveyed to the defendant, and other persons many years before the security deed and the sale under the power thereof. The deed was irrelevant to the issue being tried. Besides, the answer of defendant did not set forth any question regarding any one other than himself being the owner of the land. Under the circumstances the court did not err in excluding the deed from evidence. Code, § 38-201.
5. For similar reasons the court did not err, as complained of in the fifth ground, in excluding from evidence a supersedeas (offered by defendant) granted in another case in which it does not appear that defendant was a party.
6. The sixth ground complains of the disqualification of a juror. The judge was authorized to find, from the counter-showing by the plaintiff, that the defendant knew, before the trial, of the relationship of the juror to the wife of one of the stockholders of the plaintiff bank. In Miller v. State, 139 Ga. 716 ( 78 S.E. 181), this court said: "It is well settled that where a juror is known to be incompetent, such incompetency is presumed to be waived unless objection is made." Georgia R. Co. v. Cole, 73 Ga. 713; Lampkin v. State, 87 Ga. 516 (7) ( 13 S.E. 523); Hadden v. Thompson, 118 Ga. 207 (2), 208 ( 44 S.E. 1001).
7. Ground 7 complains that the court erred, after a return of the verdict for plaintiff, in allowing the jury, before dispersing, so to amend the verdict as to read "in favor of injunction as prayed." There was no error in allowing the verdict to be perfected in the presence of the jury before they had retired from the box. Code § 110-110. In Herndon v. Sims, 7 Ga. App. 675 ( 67 S.E. 835), the Court of Appeals held: "There was no error in causing the verdict to be reformed or remodeled in the presence of the jury before they had retired from the box." See Smith v. Pilcher, 130 Ga. 350, 355 ( 60 S.E. 1000).
8. Ground 8 complains of the grant of a mandatory injunction. Where the main purpose of the injunction is not to require any affirmative action, but to restrain the defendant from repeating a trespass, the injunction is not mandatory, although compliance with it may require some affirmative action on the part of the party enjoined, such as opening a gate that had been nailed up. Phinizy v. Gardner, 159 Ga. 136 ( 125 S.E. 195); Rosser v. Styron, 171 Ga. 238 ( 155 S.E. 23); Peebles v. Perkins, 165 Ga. 159 ( 140 S.E. 360); Lockwood v. Daniel, 193 Ga. 122 (6) ( 17 S.E.2d 542), and cit.
9. The evidence was sufficient to support the verdict, and the court did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur.